CSD Center for the Study of Democracy An Organized Research Unit Why do they punish themselves? In 1990, the Bulgarian parliament dominated by Post-communists appointed a special commission to produce a list of persons who had collaborated with the secret police during the communist era. 1 The final list included the names of eighty deputies, that is, one-fifth of all legislators. In December 1993, the Post-communists holding majorities in both houses of the Romanian legislature adopted similar legislation. The law mandated the publication of the names of former agents and informers of Securitate, the Romanian secret police in 1945-1989. Proven informers were forbidden from holding public office (Schwartz 1995). In Hungary, the 1996 lustration act revealed the links of MPs with the secret police and named members of the communist pre-transition government who had been receiving reports from the secret police. This act was passed by a parliament with a post- communist absolute majority. The same legislature issued a declassification bill that in September 1997 opened to the public the secret files of the former regime. Finally, in 1997, the Polish Lower House dominated by Post-communists adopted a bill that instituted the screening of candidates for MPs, justices, and attorneys for their connections to the communist secret services between 1944 and 1990. In addition, the Polish post-communist president initiated a declassification law and proposed a bill founding the Citizens' Archive. Its goal would be to collect, organize, and distribute copies of the ancien régime's documentation to the public (Kwasniewski 1997). In all these cases, the post-communist successors of the old regime passed laws that seemingly inflicted substantial and immediate political harm on themselves. These laws eliminated many of their members and supporters from public office outright but, more importantly, prevented some of their candidates from running in the upcoming electoral struggles. Bills similar to the ones described above constitute "lustration laws", that is, legal measures that are adopted in countries following transitions to democracy to verify whether persons running for legislative office had collaborated with the ancien régime. Proven collaborators are either explicitly banned from running for office or their past is revealed to the electorate, who are likely to 1 We call the members of formerly communist parties that have adapted themselves to competition in democratic elections "Post-communists." We call "Anti-communists" the parties that insist on harsh treatment of members of the communist ancien régime. We use the hyphenated versions of both nouns on the basis of their relatively highest frequency among Google Scholar hits. For all parties mentioned in this article, their original acronyms, original and English names, spatial positions, and other data are listed in Appendix 2. 1 judge them harshly.2 Lustration, along with decommunization (banning from public office former communist party members or leaders) and declassification (revealing to the public the contents of secret police files of the authoritarian era) are examples of transitional justice (TJ) procedures. Lustration, decommunization and declassification are of particular interest to students of de- mocratizing societies. Politicians in East-Central Europe feel very strongly about lustration be- cause such legislation is directly tied to their interests. A harsh bill may end, and has often ended, careers of former collaborators. Parties who have fewer ex-collaborators amongst their ranks may benefit from introducing lustration laws as a tool of political manipulation that eliminates electoral competition. If politicians care about retaining office and about obtaining larger representation of their parties in legislatures, they must care about lustration. No wonder that introducing, changing, or vetoing TJ remains one of their favorite activities (see Fig. 1). FIGURE 1: TIMELINES OF TJ FOR "NEW EUROPE" The term “Transitional Justice” also denotes research that deals with righting wrongs commit- ted by members and collaborators of the ancien régime (Kritz 1995a, Poganyi 1997). Its normative component, rooted in legal and constitutional theory, examines possible justifications for retroac- tivity and problems created by retroactivity (Holmes 1994, Sa’adah 1998). Main questions include: “To what extent should the ideals of rule of law be bent for the sake of punishing the wrongdoers?” and “Can acts that were legal according to authoritarian constitutions be prosecuted?” (Nino 1996, Welsh 1996) Another strain of TJ research asks positive questions. One may inquire why new democracies attempt to rectify the ancien régime’s wrongs (Schmitter and O’Donnell 1986, McAdams 2001); who are the actors responsible for implementing TJ (Elster 1998, 2004); and whether TJ has led to reconciliation (Gibson 2004). Related literature deals with negotiated transitions and predicts that autocrats concede to democratization only after they are guaranteed that the new democratic institu- tions will not prosecute members of the ancien régime (Schmitter and O’Donnell 1986, Przeworski 1991, Colomer 1991, Omar 1996). Examples of such institutional guarantees include constitutions that render retroactive legislation illegal or electoral laws that give the outgoing regime an upper hand. Finally, there is a considerable body of literature in comparative politics devoted to explain- ing the surprising come-back of post-communist parties in East-Central Europe (Ishiyama 1999, Grzymała-Busse 2002, Bozoki 2002, Druckman and Roberts forthcoming). It is indeed surprising that successors of parties responsible for decades of authoritarian rule, who were so unpopular in 1989, would be winning elections only a couple of years later. But even more puzzling than their revivals, is that Post-communists adopt policies that scholars always considered harmful to them. Neither the TJ literature, nor the literatures in post-communist politics have examined post- communist “self-lustrations.” Our goal is to explain why Post-communists “punish themselves.” It is useful to shed some light on the intuitions behind the explanation we offer. First of all, in four out of eight countries where lustration laws were adopted for the first time in the 1990s, Post-communists were in power at the time of adoption, but expected to lose the upcoming elec- tions. The laws were passed either in the close proximity of elections or during cabinet crises that increased the probability of early elections. In Lithuania, “de-sovietization” laws with some 2Bills revealing collaboration with the ancien régime’s secret police resemble legislation increasing the trans- parency of the political processes (Alt et al. 2006). The effects of lustration are similar to those of uncovering corruption by political actors (Kunicova 2005). 2 characteristics of lustration were adopted early by a Soviet-elected parliament. In the remaining three countries that adopted lustration, Post-communists never held a parliamentary majority. In other words, lustration is often introduced either when post-communist parties are relatively weak, or when they are very strong but are about to lose power. Our explanation of the Post-communists’ apparently puzzling behavior builds on these observations. We argue that Post-communists act under constraints of legislative institutions. They adopt seemingly self-hurting bills when they expect to lose the upcoming elections to anti-communist opponents who want to punish them more harshly. To prevent this harsh legislation, they pre- emptively pass milder bills that appease the median legislator and make him reluctant to accept anti-communist proposals. We formalize our argument with a game-theoretic model of agenda set- ting. In their seminal contribution, Romer and Rosenthal (1978, 1979) introduced an agenda-setter model that explains how the final outcome of the legislative process results from an interaction between a proposer and the median in the legislature. We use a more complex version of their model that formalizes the following core intuition: Suppose the Post-communists anticipate losing proposal power to anti-communist forces. If they do not adopt any bill, then they risk suffering from very harsh lustration, because the legislative median may prefer harsh lustration to no bill at all. Post-communists may prevent this scenario by implementing a mild bill themselves. If their bill appeases the new parliamentary median, it prevails when they lose power. In the original Romer-Rosenthal model, a proposer acts strategically by predicting the median’s response. In our model, a proposer acts strategically by predicting the actions of both the new proposer and the new median, who will be chosen in the next period. The uncertainty about the post-electoral median’s position adds flavor to Romer and Rosenthal’s original insight. The scenario described above implicitly assumes adopting bills under closed rule procedures (Denzau and Mackay 1983, Gilligan and Krehbiel 1987, Weingast 1989, Baron and Ferejohn 1989, Baron 2000). Under such design, the proposer’s bill is drafted in the appropriate committee or ministerial department and once on the floor of the legislature, it cannot be modified. The median has to “take it or leave it.” Under procedures resembling open rule, the role of the proposer of bills is insignificant since all his proposals can be more or less freely amended once they reach the floor. The bill favored by the median voter